PRIVILEGED COMMUNICATION BETWEEN A LAWYER AND A CLIENT ______________________________________________________ __________________________ __________________________________________________ ______________________
PROFESSIONAL ETHICS AND PROFESSIONAL ACCOUNTING Submitted to:
M! ARVINDNATH TRIPATHI
Submitted B":
Ab#i$%& Si$'# Ro(( No! )*+)*, Seme-te I.
DAMODARAM SAN/IVAYYA NATIONAL LAW UNIVERSITY VISA0HAPATNAM
T%b(e T%b(e o1 Co$te$t
+! Introduction……………………………………………………………………………. ) *
Research Methodology
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Aims and Objectives
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Research uestions
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!ha"terisation
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Mode o# !itation
$. Origins and Rationale o# the Attorney…………………………………………………2 %. !lient Privileges Rules…………………………………………………………………, &. 'he rule in the ()* (+A* !A,A-A and (………………………………………… 3 /. 'he rule in India…………………………………………………………………..……4 0. ce"tions to the Rule Across 2urisdictions………………………………………..… 5 3. !onclusion……………………………………………………………………………. +) 4. 5ibliogra"hy………………………………………………………………………..… +4
I$todu6tio$
6a7 is considered a noble "ro#ession* and this is re#lected in the "redominance o# la7yers in all 7al8s o# "ublic li#e in the "ast* be it the #reedom movement* or early "ublic service or "olitics. Also* a la7yer 7as regarded as a #amily #riend.1 9hile according to most "eo"le this "erce"tion o# la7yers has changed in the eyes o# the "ublic*$ there is still a need to maintain some "arts o# that relationshi". One essential "art o# the relationshi" bet7een attorney and client is that the client trusts the attorney im"licitly. 'his is essential #or the #unctioning o# the "ro#ession* as 7ell as #or the 7ell: being o# the client* as he 7ill then be able to tell his la7yer everything that the la7yer needs to 8no7 to re"resent him to the best o# his ability. 'his trust can eist through the la7yer;s moral #ibre or ethical norms and* 7hen that isn;t su##icient* through s"eci#ic legal rules. 'he legal rules are o#ten to increase the level o# #aith that clients have that their trust 7ill not be breached. 'his "a"er eamines the origin o# the idea o# attorney:client "rivilege* and 7hat "ur"ose it serves. It then loo8s at the nature o# the in#ormation that is "rotected and ece"tions to the "rivilege rule. !ertain s"eci#ic situations are analysed* and a normative idea on 7hat the la7 should be is also "rovided. 9hile the #ocus o# this "a"er is Indian la7* the la7 in the (nited )ingdom and the (nited +tates has also been analysed as most legal rules in India are borro7ed #rom Anglo:saon juris"rudence. s"ecially as #ar as the rules regarding attorney client "rivilege are concerned* as they are #ound in the Indian vidence Act* 143$ 7hich 7as enacted in the 5ritish era.
Re-e%6# Met#odo(o'" 1 +oli 2. +orabjee* <6a7yers as Pro#essionals=* AIR $>>$ 2our &. $ In the (nited +tates* #or eam"le* la7yers are easily the most hated and least trusted "ro#ession. 9hen* in 1??1* a national sam"le 7as as8ed to volunteer <7hat "ro#ession or ty"e o# 7or8er do you trust the least*= la7yers 7ere #ar and a7ay the most #re@uent res"onse. Almost as many $%BC s"ontaneously volunteered la7yers as the net t7o categories car salesman* 1%BD "oliticians* 11BC combined. Marc Ealanter* <'he Faces o# MistrustG 'he Image O# 6a7yers In Public O"inion* 2o8es* And Political -iscourse=* 00 (. !in. 6. Rev. 4>/.
Aim- %$d Ob7e6ti&e-:
'he aim o# this "roject is to understand the rationale behind creating a rule o# "rivilege #or attorney client communications and to see its a""lication a cross jurisdictions.
S6o8e %$d Limit%tio$-:
'his "a"er is limited to eamining Indian la7 in detail. For the "ur"oses o# com"arison* es"ecially in terms o# ece"tions* (+ la7* !anadian la7 and () la7 have been eamined.
St"(e o1 Witi$':
'he researcher has used a uni#orm mode o# citation through this "a"er
Re-e%6# 9ue-tio$-: +! 9hy is there a rule "rivileging communication bet7een an attorney and his client )! Ho7 is this rule statutorily "rovided #or in various jurisdictions 2! 9hat are the various ece"tions to this rule in various jurisdictions ,! 9hat are the trends that this rule has seen over the recent "ast
'he researcher has attem"ted to ans7er all these in this "a"er.
C#%8tei%tio$:
'his "a"er is divided into the #ollo7ing sectionsG Se6tio$ O$e: Origins and Rationale o# the Attorney !lient Privilege Rules Se6tio$ T;o: 'he Rule in the ()* (+A* !anada and uro"ean (nion Se6tio$ T#ee: 'he Rule in India Se6tio$ Fou: ce"tions to the rule across jurisdictions
Mode o1 Cit%tio$:
A uni#orm mode o# citation has been used #or the entirety o# this "a"er.
Oi'i$- %$d R%tio$%(e o1 t#e Atto$e" C(ie$t Pi&i(e'e Ru(e-
<'he situation created i# there is no "rivilege given is one o# every man being #orced to de#end himsel# instead o# hiring a la7yer* or "eo"le telling their la7yers only hal# the story.=% 'his is the idea behind "rotecting this "rivilege* and is "remised on the idea that legal business cannot be conducted 7ithout "ro#essional hel"* and that "ro#essional hel" can only be e##ectively "rovided 7ith #ull in#ormation.& 6ord 5rougham 6! in Ereenough v. Eas8ell/ stated that subject to recognised ece"tions* communications see8ing "ro#essional legal advice* 7hether or not in connection 7ith "ending court "roceedings* are absolutely and "ermanently "rivileged #rom disclosure even though* in conse@uence* the communications 7ill not be available in court "roceedings in 7hich they might be im"ortant evidence. It is clear #rom this discussion that the con#identiality o# in#ormation bet7een la7yer and client is both a right o# the la7yer as 7ell as the duty.0 It is a right as the la7yer cannot be com"elled to give that evidence* and it is a duty as he 7ill be "revented #rom divulging this con#idential in#ormation 7ithout the consent o# the client in @u estion.3 In )ishore 6al v. !hairman* m"loyees +tate Insurance !or"oration*4 the !ourt observed that the relationshi" bet7een a doctor and his "atient must be one o# utmost trust and con#idence* and that the relationshi" is a "ersonal relationshi". In? order #or this relationshi" to #lourish* it is clear that in#ormation "assed #rom one to the other 7ould have to remain con#idential. 'he attorney client "rivilege etends to a#ter the termination o# the relationshi" bet7een the t7o "arties. It also entails that the attorney do all he can to ensure con#idence is maintained a#ter this relationshi" is severed. For eam"le* the la7yer should return all documents that he has that belong to the client.1>
% Greenough v. Gaskell * 14$&:%&C All RRe"C 303. & Jones v. Great Central Ry* 1?1> A! &. / Greenough v. Gaskell * 14$&:%&C All RRe"C 303. 0 ). Eururaja !hari* Advocacy and Professional Ethics* AllahbadG 9adh7a and !o. * $>>>C* at ". 1&%. 3 Id . 4 Kishore Lal v. Chairman, Emloyees !tate Insurance Cororation* AIR $>>3 +! 141? ? Id . 1> P. Ramanatha Aiyer* Legal and Professional Ethics" Legal Ethics, #uties and Privileges of a La$yer * %rdedn.* ,ag"urG 9adh7a and !o.* $>>%C
!on#identiality to a lay "erson includes not only an underta8ing by the la7yer that he 7ill not reveal this in#ormation to the "ublic or any member thereo#* but also an underta8ing by the legal system that the la7yer 7ill not be com"elled to reveal "rivileged in#ormation.11 'here are several obvious bases #or the eistence o# a rule "reventing an attorney #rom divulging in#ormation about his clients; cases. First* this duty stems #rom a res"ect #or the right to "rivacy* as the in#ormation belongs to the client* and that must be maintained. +econd* in "urely "ractical terms* a client 7ill not 7ant to go to a la7yer 7ho he doesn;t believe he can trust to 8ee" his in#ormation con#idential.
T#e Ru(e i$ t#e U0< USA< C%$%d% %$d EU:
'he rules governing attorney client "rivilege are an essential "art o# common la7 as discussed above. Hence* #or the discussion belo7* the researcher has just dealt 7ith a cou"le o# recent decisions that concern the subject as #ar as () la7 is concerned. In its judgment in the case o# +outh7ar8 and Jauhall 9ater !om"any*1$ 1?34C % 5- %1/ !AC* 6ord !oc8burn* !.2.* observedG <'he relation bet7een the client and his "ro#essional legal adviser is a con#idential relation o# such a nature that to my mind the maintenance o# the "rivilege 7ith regard to it is essential to the interests o# justice and the 7ell:being o# society.= 'he judge considered the "otential bene#it o# disclosure in some cases but concluded that the bene#its o# disclosure are out7eighed by the attendant ris8s and there#ore the disclosure is not justi#ied. In the (nited )ingdom* legal "rivilege is divided into legal advice "rivilege and litigation "rivilege. 'he second ty"e is 7ider and covers documentation* etc. along 7ith 7hat is communicated bet7een the t7o. Ho7ever* it only a""lies 7hen there is a litigation that has ta8en "lace.1% uro"ean !ommunity 6a7 recognises the con#identiality o# certain communications bet7een la7yer and client.1& Ho7ever* as #ar as 7ritten documents are concerned* the "rivilege only 11 !lar8 -. !unningham*
>%C. 1$ !outh$ark and %au&hall 'ater Comany* 1?34C % 5- %1/ !AC. 1% Eauri )ul8arni* >&C 1?%C 1/. 1& Article 0* uro"ean !onvention. !ee Ross !ranston* Legal Ethics and Professional Resonsi(ility* O#ordG !larendon Press* 1??/C* at ". 11?
a""lies to them i# they are made #or the "ur"ose o# and in the interest o# the client;s right to de#ence* and that they emanate #rom la7yers not em"loyed by the client.1/'his is di##erent #rom the "osition in the other countries eamined in this "a"er* as in those countries the #act o# em"loyment o# the la7yer is irrelevant to ascertaining 7hether "rivilege e ists or not. In the (+A and !anada* these rules #ind de#inition in the rules o# evidence. 'hese rules are based almost entirely on common la7 in both the (nited +tates10 and !anada.13
T#e Ru(e i$ I$di%:
In India* the legal "rotection #or this "rivilege is #ound in s. 1$0 to s. 1$? o# the Indian vidence Act* 143$.14 'he "ractical conse@uence o# this is that 7hen a la7yer is called as a 7itness against his client* he might be obliged to relin@uish his engagement in the case. 1? 'his is also "art o# Rule 1% o# !ha"ter II o# Part JI o# the 5ar !ouncil o# India Rules.$> An e"lanation o# the "rivilege "rovisions 7as "rovided by the Eujarat High !ourt in Eurunana8 Provisions +tores v. -ulhonumal +avanmal and Ors.$1 'he court stated that <,either a legal adviser nor his inter"reter* cler8 or even servant could be "ermitted to disclose any communications made to him in the course and #or the "ur"ose o# "ro#essional em"loyment 1/ ). Eururaja !hari* Advocacy and Professional Ethics* AllahbadG 9adh7a and !o. * $>>>C* at ". 1&1 10 Rule />1 o# Federal Rules o# vidence states thatG 4.$>1$. 14 1$0. Pro#essional communications L ,o barrister* attorney* "leader or va8il shall* at any time be "ermitted* unless 7ith his client;s e"ress consent* to disclose any communication made to him in the course and #or the "ur"ose o# his em"loyment as such barrister* "leader* attorney or va8il* by or in behal# o# his client* or to state the contents or condition o# any document 7ith 7hich he has become ac@uainted in the course and #or the "ur"ose o# his "ro#essional em"loyment* or to disclose any advice given by him to his client in the course and #or the "ur"ose o# such em"loyment G Provided that nothing in this section shall "rotect #rom disclosure L 1C Any such communication made in #urtherance o# any illegal "ur"ose. $C Any #act observed by any barrister* "leader attorney or va8il* in the course o# his em"loyment as such* sho7ing that any crime or #raud has been committed since the commencement o# his em"loyment. It is immaterial 7hether the attention o# such barrister "leader attorney or va8il 7as or 7as not directed to such #act by or on behal# or this client. 1$3. +ection 1$0 to a""ly to inter"reters etc. L 'he "rovision o# +ection 1$0 shall a""ly to inter"reters and the cler8s or servants o# barristers* "leaders* attorneys and va8ils. 1$?. !on#idential communications 7ith legal advisers L,o one shall be com"elled to disclose to the court any con#idential communication 7hich has ta8en "lace bet7een him and his legal "ro#essional adviser* unless he o##ers himsel# as a 7itness* in 7hich case* he may be com"elled to disclose any such communications as may a""ear to the court necessary to be 8no7n in order to e"lain any evidence 7hich he has given* but no others.= 1? )* +ovas v. Immanueal Jose* AIR 1??0 )er 1. $> M. !. +ar8ar et al** !arkars La$ of Evidence* 1/th edn.* +. +ar8ar and anr. eds.* ,ag"urG 9adh7a and !om"any* 1???C* at ". $>$4. $1 Gurunanak Provisions !tores v. #ulhonumal !avanmal and -rs.* AIR 1??& Euj %1.
o# such legal adviser or to state the contents or condition o# any documents 7ith 7hich any such "erson has become conversant in the course and #or the "ur"ose o# such em"loyment.= 'he !ourt e"lained that the "rovisions eisted to "rotect the client and not the la7yer. It also e"lained the rationale #or the "rovisions* saying that they eisted due to the im"ossibility o# conducting legal business 7ithout the "ro#essional assistance and on the necessity in order to render that assistance e##ectual o# securing #ull and unreserved communication bet7een the adviser and the client. 'he court also clari#ied that instructions to counsel 7ould @uali#y as "rivileged documents. 'he court also stated the limitations that eist on the eercise o# this "rivilege by virtue o# the 7ording o# the substantive "rovision o# the statute. It said that the statute only "rotects only such communications as are made to the legal adviser in con#idence in the course and #or the "ur"ose o# his em"loyment. Ho7ever* they 7ere @uic8 to clari#y that the absence o# litigation or the lac8 o# imminent litigation at the time the con#idential communications are made 7ill not constitute an ecuse #or its disclosure 'he court also e"lained the di##erence bet7een ss. 1$0 to 1$4 and s. 1$?* stating that the #ormer deals 7ith the "rotection a##orded to the la7yer #rom being called to the stand 7hile the latter deals 7ith the "rotection a##orded to the client #rom revealing in#ormation "rovided by his la7yer to him. 'he #ormer is there#ore not only a "rohibition on the in#ormation being ta8en #rom the la7yer* but also entails the "o7er o# the !ourt to "rohibit the la7yer #rom revealing "articular in#ormation. 'he same obviously doesn;t a""ly to the latter is the client has the right to disclose any in#ormation. 'he legal adviser is obliged to claim the "rivilege unless the client has given consent. Failure to do this may amount to "ro#essional misconduct. +ections 1$0 and 1$? o# the vidence Act "rotect the communications bet7een a la7yer and client made during the em"loyment o# the la7yer. In the o"inion o# the 5ombay High !ourt* these "rovisions by necessary im"lication "rotect the documents "re"ared by the client in antici"ation o# litigation either #or see8ing legal advice or #or using them in that litigation.$$ Further* s. 1$0 clearly re@uires that there be e"ress consent o# the client in order #or "rivileged in#ormation to be divulged. It is not enough that the client #ails to assert or claim that the communication is "rivileged.$% 'his is "robably "rovided in order to ensure that clients do not un7ittingly or un8no7ingly 7aive "rivilege as it might be antithetical to their interests. !learly $$ Larsen . /ou(ro Limited vs. Prime #islays 0P1 Ltd .* $>>%N 11& !om" !as 1&15omC. $% 2andesan v. !tate of Kerala* 1??/ !ri 62 01 )erC.
the legislature intended to "rovide high "rocedural re@uirements that must be met be#ore a la7yer can testi#y as to con#idential in#ormation. 'he 6a7 !ommission in its "ro"osed amendment had stated that the 7ords
$& 14/th 6a7 !ommission Re"ort* available at la7commissiono#india.nic.inKre"ortsK14/thRe"ort:PartJ."d# * last visited on $&.1$.$>>?. 'his is the same recommendation as 7as made in the 0? th re"ort* but 7as not acted u"on. !ee 0?th 6a7 !ommission Re"ort* available at la7commissiono#india.nic.inKre"orts. $/ Larsen . /ou(ro Limited vs. Prime #islays 0P1 Ltd .* $>>%N 11& !om" !as 1&15omC. $0 M. !. +ar8ar et al** !arkars La$ of Evidence* 1/th edn.* +. +ar8ar and anr. eds.* ,ag"urG 9adh7a and !om"any* 1???C* at ". &$&:&$/ $3 2emon 3a4ee 3aroon 2ahomed v. 2olvi A(dul Kuran . another * 1434C % 5om ?1D Re(ecca 2ondal v. Ram Prata* AIR 1?4? AP %$1. $4 % Ravi v. !tate of Kerala* 1??& !ri 62 10$ )erC.
In +u"erintendent and Remembrancer o# 6egal A##airs* 9est 5engal v. +. 5ho7mic8*$? the !ourt held that any communication that had instructions #rom the client 7as "rivileged* including* as 7as the case in the "articular #actual matri* notes on the eamination in chie# o# a 7itness #or the other "arty. !ommunication #rom a third "arty to the la7yer* meant to be transmitted to the client* is also considered "rivileged i# it 7as in#ormation connected to the general "ur"ose o# the legal advice.%> +ection II o# the 5!I Rules "rovides the duties that a la7yer has to7ards his client. One o# these is the duty to com"ly 7ith s. 1$0 o# the vidence Act* 7hich "rovides the con#identiality clause in Indian la7. !ourts can either grant an injunction "reventing the la7yer #rom ma8ing con#idential "ublic or a7ard damages to a client 7ho has had such con#idential in#ormation made "ublic. Other "ossible measures include action being ta8en against the la7yer by the 5ar !ouncil* as such activity 7ould constitute misconduct* 7hich the 5ar !ouncil is em"o7ered by s. %/ o# the Advocates Act* 1?01 to deal 7ith. 'he +u"reme !ourt has recently held that there is no "resum"tion that only because t7o la7yers are "racticing #rom the same chamber* they 7ould breach their con#identiality or commit some act 7hich 7ould amount to "ro#essional misconduct%1 'his is "art o# a broader trend o# the !ourt to be less interventionist in matters concerning "rivate contracts. 'he "rivileges mentioned in +ections 1$0 and 1$? are designed to secure the clients con#idence in the secrecy o# his communication. Any breach o# the con#idence is a stigma not only on the individual concerned* but is also li8ely to have e##ect on credibility o# the "ro#ession as a 7hole.%$ 5ased on this "rinci"le* it has been held that a salaried em"loyee 7ho gives his em"loyer legal advice 7ould be in the same "osition as someone 7ho is an advocate 7hose services are hired #or a "articular legal matter.%% Hence* these "rovision has been etended to a""ly to in:house counsel as 7ell. 'his seems to #ollo7 #rom the "rinci"le that the la7 is based on* as it is clear that the need #or the "rivilege etends to anyone see8ing to give meaning#ul legal advice. 'he Andhra Pradesh High !ourt has also held that the ece"tion does not a""ly in cases 7here he advocate 7as not acting in his ca"acity as an advocate.%& +o* #or eam"le* 7hen the advocate $? !uerintendent and Remem(rancer of Legal Affairs, 'est 5engal v. !* 5ho$mick * AIR 1?41 +! ?13. %> 5ala(el v. Air India* AIR 1??% +! 1$&0. %1 !neh Guta v. #evi !aru and -rs** $>>?C 0 +!! 1?&. %$ Council of Institute of Chartered Accountants of India v. 5 Ram Goel * $>>$N 111 !om"!as %// -elhiC. %% 2unicial Cororation of Greater 5om(ay and Anr* v. %i4ay 2etal 'orks* AIR 1?4$ 5om 0. %& Gara Padmana(ham v. )eti )arasimha !astry and others* $>>> 0C A6' %0&.
7as 7itness to a sale agreement in his "ersonal ca"acity* he can be called u"on to give evidence 7ith res"ect to that agreement. Another situation that has come be#ore the courts is one 7here the advocate is eamined in order to "rove a #act that is not a con#idential #act. In such cases* #or eam"le 7hen an advocate is to be @uestioned about the service o# a notice on the o""osite "arty* the court has held that the "rivilege "rovided under s. 1$0 is not violated.%/ Again in Rev. Fr. 5ernad 'hattil v. Ramachandra Pillai*%0 the same @uestion arose and it 7as "ointed out that 7hatever 7as 7ritten or 7as stated in the notice 7as evidently the substance 7hich 7as meant #or being disclosed to others and more "articularly to the other side. 'he rational #or this seems to lie in the #act that the attorney client "rivilege has been created as a s"eci#ic ece"tion to the general obligation to give evidence* and there#ore it is to be as limited as "ossible. +ince the in#ormation in @uestion here is any7ay "ublic* there is no bene#it to etending "rivilege to cover these situations. ,o client 7ill in any 7ay disclose less to his la7yer due to the #act that this in#ormation is "ublic. 'here#ore* "rivilege is not etended to cover these situations. Ho7ever* in@uiries o# this nature must be limited to @uestions about matters that are not con#idential* and the la7yer must not ans7er @uestions that go beyond this. Another im"ortant "rovision o# la7 relevant to the eistence o# attorney client "rivilege is s. ?1 o# the !ode o# !riminal Procedure 1?3%. 'his "rovision allo7s a !ourt to order any "erson in "ossession o# any document to "roduce the same be#ore the !ourt. 9hile the section s"eci#ically eem"ts its a""lication to s. 1$% and s. 1$& o# the Indian vidence Act* the same is not true o# ss. 1$0:1$?.%3 'his suggests that the intention o# the legislature 7as to have s. ?1 o# the !ode override these "rovisions. One alternative suggested by some cases an d authors is to use s. 10$ o# the vidence Act to harmoniously construe the t7o "rovisions. 'his can be done as s. 10$ allo7s the !ourt to decide 7hether "articular documents "resented be#ore the !ourt are to be admissible as evidence or not. 'here#ore* even 7hen disclosure o# a document is made "ursuant to s. ?1 o# the !ode* the document can be ruled inadmissible thus "rotecting the intent o# s. 1$0 in "art. Ho7ever* this might not allay all the #ears that a client may "otentially have* as the decision on 7hether to allo7 the document as evidence is le#t to the judge.
%/ P*G* Anantasayanam and others v. P.E. Anantasayanam and others* 1??4 $C A6' 03/. %0 Rev* 6r* 5ernad /hattil v. Ramachandra Pillai* 1?43 !r 6.2. 3%?. %3 +. ?1%C* !ode o# !riminal Procedure* 1?3%
In J.!. Rangadurai v. -. Eo"alan*%4 the court* s"ea8ing through 2ustice +en* has held that relationshi" bet7een an attorney and his client is a "ersonal relationshi" involving the highest trust and con#idence. As a result* the relationshi" is o#ten considered a #iduciary relationshi"* creating u"on the attorney the duties that come 7ith such a relationshi".%? An advocate must be considered more than just an agent o# the client* as his role and duties go beyond that. 'he !ourts have also noted that a breach o# this "rivilege by la7yers a##ects not only the individual la7yer* but also the credibility* and there#ore the ability o# the "ro#ession as a 7hole.&> 'here#ore it is clear that the "osition o# Indian la7* similar to that o# 5ritish la7* is over7helmingly in su""ort o# the eistence o# this "rivilege and its almost universal a""licability.
E=6e8tio$- to t#e u(e %6o-- 7ui-di6tio$-
One interesting @uestion that has come u" is 7ith regard to the tem"oral duration o# the "rivilege. 9hile it is clear that the "rivilege etends till a#ter the relationshi" bet7een the attorney and the client has ceased to eist* there have been several cases dealing 7ith 7hether this "rivilege etends till a#ter the death o# the client. +ince the "ur"ose served by the "rivilege is to "rotect the interest o# the client* it should ideally not etend beyond the "oint 7here the client has ceased to have an interest in the matter. +o as #ar as civil suits are concerned* "rivilege has to etend a#ter death as the estate o# a deceased client can be sued. 5ut as #ar as criminal cases are concerned* an argument has been made #or allo7ing courts to re@uire attorneys to testi#y "roviding "rivileged in#ormation i# it hel"s ecul"ate someone 7rongly accused o# a crime* since the client is dead and cannot be charged #or the crime any7ay. 'he !ourts across the ()* (+A and India have* ho7ever* held that this in#ormation is not to be made "ublic even a#ter the death o# the client* and even i# it could "otentially save another "erson #rom being 7rong#ully convicted. In the (nited )ingdom* the House o# 6ords discussed this matter in5ullivant and others v. Attorney Eeneral o# Jictoria.&1 'he court #ound that "rivilege is not destroyed by the death o# the testator. Ho7ever* the !ourt doesn;t say 7hy. %4 %*C* Rangadurai v. #* Goalan* AIR 1?3? +! $41. %? )ailash Rai* Legal Ethics, Accountancy for La$yers and 5ench 5ar Relations* 0th edn.* AllahbadG !entral 6a7 Publications* $>>/C* at ". 01 &> 'he Council of the Institute of Chartered Accountants of India, )e$ #elhi v. 2ani !* A(raham* AIR $>>> )er $1$. &1 5ullivant and -thers v. Attorney General of %ictoria* 1?>1:>%C All R 41$.
In the (nited +tates* the (+ +u"reme !ourt in +7indler and 5erlin v. (.+.*&$ the !ourt held similarly. Here it 7as stated that the "resum"tion has al7ays been that ece"t in certain s"eci#ied cases "rivilege 7ould etend beyond death. 'he rationale used in this case 7as that in the event that such in#ormation 7as to be made "ublic* the client may choose to not reveal it in the #irst "lace. 'he !ourt debun8ed the idea that there is nothing to lose #or the client i# the disclosure ta8es "lace a#ter his death* citing re"utation* civil liability and "otential harm to #amily as three "roblematic conse@uences o# such disclosure. In India there hasn;t been a ruling on the "oint* though one case in "assing has mentioned that "rivilege etends beyond the death o# the client.&% Ho7ever* this is unli8ely to a""ly as "recedent i# this issue does come u" be#ore the courts at any "oint* as it is obiter dicta. Another situation in 7hich "rivilege may be sought to be 7aived is one 7here child care is concerned. 9hile there have been no cases on this in India*&& the (nited )ingdom has seen the House o# 6ords ta8e the "osition that "rivilege can be #orcibly 7aived in cases concening child 7el#are.&/ 'he "rinci"le used here 7as that child:care "roceedings are not adversial in nature in the #irst "lace. 'here#ore* the bene#its that accrue #rom "roviding "arties 7ith the attorney:client "rivilege 7ould not accrue here* as the "arties 7ere no adversarial and not com"eting 7ith each other. Ho7ever* 7hile the justi#ication #or con#identiality is "artly the adversarial nature o# the system* but not only that. 'here is also the "ractical justi#ication o# this in#ormation being disclosed to the la7yer only because the client 8no7s that it is not going to go to anyone ece"t the la7yer. 'his "roblem 7ill not go a7ay in such cases.&0 Another standard ece"tion to the "rivilege rule is one o# "ublic interest. 'his is a""lied in the (nited +tates as 7ell as the () #or medical "ro#essionals. 'he courts in India have also agreed that there is a "ublic interest ece"tion to doctor "atient con#identiality* in the case o# a doctor telling his "atient;s "otential 7i#e that he is HIJ "ositive.&3Here* "ublic sa#ety is considered more im"ortant than "rivilege.&4 'here#ore* in cases 7here a la7yer is a7are that a client is about to
&$ !$indler and 5erlin v. 7*!* 114 + !t. $>41 1??4C. &% Ayesha 5i v. Peekam !hahi( and -thers* AIR 1?/& Raj 3&1. && !.+. Raghu Raman* >3 2our /0. &/ Re L 0A 2inor1 Police Investigation8 Privilege* 1??0C $ All R 34 H6C. &0 Andre7 5oon and 2enni#er 6evin* /he Ethics and Conduct of La$yers in England and 'ales O#ordG Hart Publishing* 1??? at ". $/&. &3 2r* 9: v. 3osital ; * AIR 1??? +! &?/. &4 R v. Egdell * 1??>N 1 All R 4%/.
commit a crime* or cause serious bodily injury to a third "arty* he can disclose this in#ormation* and "rivilege does not a""ly. In cases 7here the in#ormation is a "ublic sa#ety concern but not a crime* the rules in the () do not "rovide any real guidance. am"le o# unsa#e buildingC. Another im"ortant ece"tion to the rule o# "rivilege in the () is in money laundering cases. +ome jurisdictions in #act create a "ositive obligation on la7yers to reveal in#ormation regarding money laundering. An area 7here this "rivilege 7ould have to be bro8en* but is not covered by Indian la7 currently* is litigation bet7een an attorney and his erst7hile client. I# a client sues an attorney* the attorney is at liberty to use in#ormation divulged to him by the client* as it is assumed that suing the attorney constitutes im"lied 7aiver o# "rivilege.&? 'his has been suggested in the 14/th 6a7 !ommission Re"ort* but isn;t "art o# the la7 yet./> A#ter this* in the late $> th century* it 7as held that i# there are documents in the "ossession or control o# a solicitor* 7hich* on "roduction* hel" to #urther the de#ence o# an accused "erson* then no "rivilege is attracted. It 7as also laid do7n that the Qbalancing o# con#licting interest; eercise has to be done by the !ourt./1 Ho7ever* this 7as over:ruled in a House o# 6ords judgment in the 1??>;s./$ In this case the !ourt debun8ed the notion o# balancing and said that the balance has been achieved 7hen giving the "rivilege in the #irst "lace* and that must be maintained. Further* the court argued that @uali#ying the "rivilege in this manner 7ould ta8e a7ay #rom the notion o# con#idence* 7hich is a "roblem in itsel#. 'he judges used the logic that such a move 7ould deter "eo"le #rom disclosing material #acts to their la7yers in the #uture as 7ell. One di##erent ta8e on the "ublic interest ece"tion has #ound #avour es"ecially in the (nited +tates in light o# the #raudulent activities o# cor"orations li8e ,RO, and 9orld !om has been in terms o# the "hiloso"hical justi#ications o# the same As a result* several ethical guidelines or model rules are being created and eisting rules are being converted to legally binding rules in order to ensure that "ublic interest is u"held.
&? Andre7 5oon and 2enni#er 6evin* /he Ethics and Conduct of La$yers in England and 'ales O#ordG Hart Publishing* 1??? at ". $01D !ee Lillicra v. )alder . !on* 1??%N 1 All r 3$& !AC /> 14/th 6a7 !ommission Re"ort. /1 R v. 5arton* 1?3$ $C All R 11?$D R v. Ataou* 1?44$C All R %$1. /$ R vs. #er(yshire 2agistrates Court e& arte 5* 1??/&C A66 R /$0.
An im"ortant @uestion has also arisen 7ith res"ect to #ormer client con#identiality. +everal clients have come to courts as8ing #or injunctive relie# against their la7yers 7ho see8 to re"resent the #ormer client;s rival. 'he court has ac@uiesced to this re@uest at "oints* but laid do7n a standard that the client has to have a reasonable belie# that con#identiality 7ill be breached./% 'he standard #or the () and some other "arts o# the common7ealth 7as laid do7n in Prince 2e#ri 5ol8iah v )PME*/& 7hich has been distinguished on #act in later cases. 'he distinguishing on #acts is usually a #unction o# 7hether the !hinese 7alls set u" #or the "ur"ose o# ensuring that con#identiality isn;t breached are su##icient #or the same.
Co$6(u-io$:
In conclusion* this "a"er has analysed that attorney client "rivilege is essentially an ece"tion to the rule that all "eo"le can be re@uired to divulge in#ormation i# the court re@uires them to. Ho7ever* the essential nature o# this Qece"tion; has given it the status o# a substantive rule o# la7* usually to be #ound in the rules o# evidence o# various countries that are a "art o# the common la7 tradition. As a result* the "rovisions containing this "rivilege are construed and the ece"tions to them are construed in a strict manner.
/% Harry McJea* <=Heard it 'hrough the Era"evine=G !hinese 9alls and Former !lient !on#identiality in 6a7 Firms=* !am 62 $>>>* /?$C* %3>:%4?. /& Prince Jefri 5olkiah v KP2G* 1???N $ A.!. $$$.
'he "a"er loo8s at the rationale behind the "rovisions and most "ro"onents o# attorney:client "rivilege base their belie# in it on the "ractical im"lications o# its removal. 6egal business 7ould cease to ta8e "lace i# clients could not be sure that the la7yer 7ould not ta8e his secrets to the grave. 'he need #or these "rovisions is there#ore not grounded in any moral or ethical understanding o# the legal understanding* but rather on a "ractical understanding o# ho7 the legal "ro#ession 7or8s. 'he "a"er then analyses the rules governing this as they eist in various countries as 7ell as the ece"tions to the same across the same jurisdictions. One common thread that seems to #lo7 across all jurisdictions is 7ith regard to an ece"tion 7hen a crime is about to be committed. In summary* the researcher 7ould li8e to state that in his o"inion* the ece"tions to this rule should be given a broader understanding. 'he "ractical "roblems connected 7ith the abolition o# "rivilege are not large enough to ignore the harms o# 8ee"ing this in#ormation secret. )ee"ing citiens alive must trum" this right* and that is 7ithout @uestion the 7ay #or7ard. +ome jurisdictions see this as the 7ay #or7ard* and others 7ould do 7ell to #ollo7 their lead.
Bib(io'%8#"
Ati6(e-
+! Andre7 Marble* >% !I6R &40.
2! !. +. Raghu Raman*
+tate o# 6a7 in (+* ngland and India=* $>>3 %C !ri. 6. 2. 143. ,! !.+. Raghu Raman*
5et7een !lient and his Attorney=* AIR $>>3 2our /0. 3! Eavin Mur"hy* <'he Innocence at +ta8e 'est and 6egal Pro#essional PrivilegeG A 6ogical
Progression #or the 6a7…but not in ngland=* !rim. 6.R. $>>1* +P* 3$4:3%1. 4! Harry McJea* <=Heard it 'hrough the Era"evine=G !hinese 9alls and Former !lient
!on#identiality in 6a7 Firms=* !am 62 $>>>* /?$C* % 3>:%4? 5! )aran 'yagi* >4 %C
!ri 6.2. 14>. >! +oli 2. +orabjee* <6a7yers as Pro#essionals=* AIR $>>$ 2our &.
Boo?-
+! ). Eururaja !hari* Advocacy and Pro#essional thics* AllahbadG 9adh7a and !o. * $>>>C )! )ailash Rai* 6egal thics* Accountancy #or 6a7yers and 5ench 5ar Relations* 0th edn.*
AllahbadG !entral 6a7 Publications* $>>/C 2! M. !. +ar8ar et al.* +ar8ar;s 6a7 o# vidence* 1/th edn.* +. +ar8ar and anr. eds.* ,ag"urG
9adh7a and !om"any* 1???C ,! Ramanatha Aiyer* 6egal and Pro#essional thicsG 6egal thics* -uties and Privileges o# a
6a7yer* %rdedn.* ,ag"urG 9adh7a and !o.* $>>%C
Mi-6e((%$eou-
! 14/th 6a7 !ommission Re"ort* available atla7commissiono#india.nic.inKre"ortsK14/thRe"ort:
PartJ."d# . ! 0?th 6a7 !ommission Re"ort* available at la7commissiono#india.nic.inKre"orts.
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+! en.7i8i"edia.orgK7i8iKAttorneyLclient_"rivilege )! 777.legalserviceindia.comKarticlesK"c.htm 2! 777.legalsutra.orgK7"..."rivilegeK!lient:Attorney:Privilege.doc ,! 777."ennjil.comKjil"K1:1_Marble_Andre7."d# 3! htt"GKKblog.i"leaders.inK"rivileged:communications:la7yers:duty:client:in#ormation:
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